Friday, January 13, 2006

State constitutions as independent protectors

Here's another paper summary.

STATE CONSTITUTIONS AND THE PROTECTION OF INDIVIDUAL RIGHTS -- BRENNAN (1977)

Before the Depression, a state judge's need to consult federal law was episodic at
best. In 1933, lots of new fed laws and agencies sprouted up, gaining
steam in 1937. But even then, state judges didn't care about federal
law--these fed agencies were administered by fed judges. (Click "Read...".)

But recently (i.e. approaching 1977), fed rights law has changed state
courts. The Reconstruction amendments have been enforced against
states more thoroughly. Although no strong economic protection (like
Lochner) remains, every other area, civil and criminal, of state
action has been transformed by the 14th amdt. But state constitutions,
too, should be protecting liberty.

14th amdt decisions fall into three categories.

I: Brown and Baker v Carr: invalidating state legislative
classifications that impermissibly "impinge" on fundamental rights
(voting, travelling, the decision to bear children) or operate to
disadvantage of protected groups.

II: Due process guarantee: need hearing before being deprived of
liberty or property interest. These include driver's licenses,
welfare, convicts' rights to hearings before parole revocation,
reasonable expectation of continued employment for public tenured
employees, etc.

III: Enforcing *specific* guarantees of Bill of Rights against
states. This category has affected state judges the
most. Incorporation was very slow in coming, and did not start until
1897, when the takings clause was applied to states. In 1925, the
First Amdt was first used to restrain states. In 1961, the
exclusionary rule was applied.

Then, a huge explosion happened. From 1962 to 1969, nine specific bill
of rights subjects were applied to states. Eight amdt, sixth
(assistance of counsel), fifth (self-incrimination), miranda, speedy
and public trials, double jeopardy, etc.

This gave full effect to principle of Boyd v US, where Justice Bradley
said rights provisions should be liberally construed. Since our govt
is more powerful than ever, we need more protection than ever.

RECENTLY, THOUGH, STATE COURTS HAVE BEGUN TO GRANT EVEN MORE
PROTECTION THAN FEDERAL COURTS. During the 60's, when the huge
expansion was taking place, state courts didn't need to worry; but
now, federal courts are slowing the expansion or curtailing it.

For example, pregnancy is not a sex-based classification (Geduldig v
Aiello, 1974), those barred from judicial forums due to poverty have
no claims, one can be branded a criminal without a hearing, and
prisoners have had their liberty interests curtailed. The federal
warrant requirement has been weakened, the first amdt has been held
not to apply to shopping malls (although this was later changed,
right?), no one has an expectation of privacy in his bank records,
less-than-unanimous criminal guilty verdicts have been accepted, and
so forth.

State courts have rejected some of these limitations. California, for
example, held that Miranda protected a statement used to impeach the
accused if it was given before the warning, and said:
"We
declare that the decision to the contrary of the US Supreme Court is
not persuasive authority in any state prosecution in California. We
pause to reaffirm the independent nature of the California
Constitution and our responsibility to separately define and protect
the rights of California citizens despite conflicting decisions of the
US Supreme Court interpreting the federal Constitution."


Jersey held that the subject of a search needed to know he could
refuse consent, contrary to the feds, despite the exact same phrasing
of the right in the Jersey and US constitutions. Hawaii and California
test searches incident to arrests as subject to a reasonableness
standard rather than being automatically allowed by the
arrest. Michigan has granted a right to counsel at any court
proceeding.

State courts are even anticipating challenges based on federal
rulings, saying explicitly that they have based their decisions on
their state constitutions. When federal law is then decided
contrarily, their decisions stand.

This pattern reminds us that the Bill of Rights was modelled off state
constitutions to start with. And prior to incorporation, state
constitutions were the primary limit on govt abuses.

But we must not allow fed courts to say "well, state courts will
protect you". Both should be sources of strong protection. Madison
would have approved: recall that an originally proposed amdt was to
force states to have jury trials. This was only fully realized when
the 14th amdt was passed. Independent tribunals of justice "will be
naturally led to resist every encroachment upon rights expressly
stipulated for."

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